Брачный договор: защита имущества и прав супругов.

Written contract entered into by a couple before marriage or a civil union

A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup) is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony (spousal support) with agreed upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse. In some countries, including the United States, Belgium, and the Netherlands, the prenuptial agreement not only provides for what happens in the event of a divorce but also protects some property during the marriage, for instance in case of bankruptcy. Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or in some cases, instead of prenuptial agreements. Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements.

Laws vary between states and countries in what content they may contain and under what conditions and circumstances a prenuptial agreement may be declared unenforceable, such as an agreement signed under fraud, duress, or without adequate disclosure of assets.

In South Africa, a civil marriage or civil union is, by default, a marriage in a community of property. To marry out of the community of property, the parties must sign an antenuptial contract in the presence of a notary public before their marriage and the contract must be registered in the Deeds Office within three months from the date of signature of the contract. When marrying out of the community, the parties have a choice to marry with application of the accrual system or without application of the accrual system. If the parties marry without accrual, the spouses' respective estates would always remain separate and neither party will have any proprietary claim against the other by the marriage. If the parties marry with application of the accrual, their respective estates would remain separate during the subsistence of the marriage. Upon dissolution of the marriage, whether by death or divorce, the spouse with the lesser accrual would have a claim against the spouse with the larger accrual for half the difference between their accrual values.

In India, prenuptial agreements are very rare and do not have any governing laws. However, with rising divorce rates, people are showing increasing interest in them. Some lawyers think that prenups don't have legal sanctity in India. However, some form of contract is signed in some cases, usually among affluent citizens. But, the agreements need to be reasonable and not violate pre existing laws like the Hindu Marriage Act. Indian courts allow a memorandum of settlement to be signed during divorces. But, no court has yet been asked to enforce a prenup. These agreements may come under the Indian Contract Act of 1872. Section 10 of the Indian Contract Act states that agreements are to be considered contracts if they are made with the free consent of the parties. However, Section 23 of the same act states that a contract may be void if they are immoral or against public policy. Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, of 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.

Pre and Post Nuptial Agreements in Hong Kong can be of “magnetic importance” in deciding the parties’ claims for ancillary relief. The leading case of SPH v SA in Hong Kong’s highest court, the Court of Final Appeal followed the earlier English Supreme Court decision of Radmacher v Granatino. That was perhaps unsurprising as one of the Judges in Radmacher (Lord Collins) also sat in Hong Kong as an NPJ. (Similarly, the successful leading counsel for Frau Radmacher, Richard Todd QC was also leading counsel for Madame S. in SPH v SA).

Prenuptial agreements have long been recognized as valid in several European countries, such as France, Belgium, the Netherlands, Germany, Poland, Switzerland, Sweden, Denmark, Norway, and Finland. While in some of these countries, there are limits on what restrictions the courts will see as enforceable or valid (e. g. Germany after 2001, where appeals courts have indicated this) a written and properly initiated contract, freely agreed upon, cannot be challenged by, for instance, invoking the circumstances under which the marriage broke down or the conduct of either part. In France, The Netherlands and Belgium (as in Quebec, which has the same judicial tradition) prenuptial agreements must be set up in the presence of a notary. In many of the countries mentioned, pre nuptials may also protect the non shared property and money from being pulled into bankruptcy and can serve to support lawsuits and settlements during the marriage (for instance if one part has sold or wrongfully mortgaged a piece of property that had been set aside by his/her partner).

Under provisions of Section 10 of the Family Code of Ukraine, marriage relationships, rights, and duties of spouses can be regulated by a marriage contract as well if spouses wish to settle their property relations in another manner then it is provided by the Family Code of Ukraine. A marriage (prenuptial) contract can be concluded by a woman and a man, who applied for registration of their marriage as well as by spouses. An underaged person, who wants to conclude a marriage contract before registration of the marriage, is to have the signed consent of his/her parent or custodian certified by a notary. Numerous provisions of this section of the Family Code of Ukraine provide quite extensive requirements regarding the form and contents of the marriage contract and the procedural issues of making the same are regulated by appropriate Instruction of the Ministry of Justice of Ukraine regarding the procedure of notarization of marriage contracts as well as far as notarization is required. Imperative requirements regarding the content of the marriage contract are provided by clause 93 of the Family Code of Ukraine, which states that the marriage contract governs property relations between spouses, and determines their property rights and duties. A marriage contract can also determine the property rights and duties of spouses as parents but with certain limitations. Personal relations of spouses cannot be regulated by the marriage contract, as well as personal relations between spouses and their children. This rule is also provided by clause 93 of the Family Code of Ukraine. Marriage contracts, which reduce the rights of children and put one of the spouses in a poor material state, are not permitted by the above imperative regulation. Within the framework of the marriage contract, none of the spouses can acquire any immovable property or other property, which requires state registration.

A prenuptial agreement is distinct from the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintenance of dynastic families, or a divorce settlement entered into by parties in connection with dissolving their marriage.

Prenuptial agreements historically had not been considered legally enforceable in England and Wales due to a reluctance on the part of the judiciary for public policy reasons. The 2010 Supreme Court test case of Radmacher v Granatino, overturned the previous legal framework on them to recognise changing societal and judicial views on the personal autonomy of married partners. Pre nuptial agreements can now be enforced by the courts as part of their discretion in financial settlement cases under section 25 of the Matrimonial Causes Act 1973 so long as the three stage Radmacher test is met and it is considered fair to do so, keeping in mind the interests of any child of the family. Radmacher holds that the courts will give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement. The case provided substantial amounts of guidance relevant to all nuptial agreement cases that have occurred since 2010. The Law Commission's 2014 report on Matrimonial Property generally accepted the decision in Radmacher and recommended the creation of a 'qualifying nuptial agreement' regime by Parliament which would create a completely binding pre nuptial agreement so long as certain requirements were met. The Commission's recommendations have yet to be implemented.

In contrast to the rest of the United Kingdom, prenuptial agreements are generally regarded as being legally enforceable in Scotland.

The legal status of prenuptial agreements in Northern Ireland is similar to that in England and Wales, in that they are generally regarded as not being legally enforceable.

Prenuptial agreements in Canada are governed by provincial legislation. Each province and territory in Canada recognize prenuptial agreements. For instance, in Ontario, prenuptial agreements are called marriage contracts and they are recognized by section 52 of the Family Law Act.

In 2015, the U. S. Supreme Court granted same sex marriages the same legal footing as marriage between opposite gender couples, in the case of Obergefell v. Hodges (decided June 26, 2015). This effect of the Supreme Court's ruling is that a premarital agreement entered into by a same sex couple in one state is fully enforceable in another state in the event of a divorce.

Certain federal laws apply to the terms that may be included in a premarital agreement. The Retirement Equity Act (REA) of 1984, signed into law by President Ronald Reagan on August 23, 1984, reconciled confusion over whether ERISA preempted state divorce laws, thereby preventing pension plans from complying with court orders giving a spouse a portion of the worker's pension in a divorce decree. A prenuptial agreement can contain waivers by which each spouse agrees to release any claims against each other's retirement benefits that arise under both state and federal laws by the marriage, like under the REA. When a United States citizen chooses to marry an immigrant, that person frequently serves as a Visa sponsor to petition for their fiancé to enter or stay in the United States. The Dept. of Homeland Security requires people sponsoring their immigrant fiancé to come to the U. S. on a Visa to provide an Affidavit of Support, and it is important to take into account the Affidavit of Support obligation for a U. S. sponsor about to publish a prenuptial agreement. The Affidavit of Support creates a 10 year contract between the U. S. Government and the sponsor, requiring the sponsor to financially support the immigrant fiancé from the sponsor's resources. As the I 864 form expressly states, divorce does not terminate the support obligations the sponsor owes to U. S. Government, and the immigrant spouse has rights as a third party beneficiary of the support promise the sponsor makes in the I 864 Affidavit. As such, any waiver of alimony in their prenuptial agreement must be drafted in a way that does not violate the contract that the U. S. sponsor makes with the government by providing the Affidavit of Support, or it will be at risk of being declared unenforceable.

In a 1990 California case, the court of appeals enforced an oral prenuptial agreement in the probate of the estate of one of the parties because the surviving spouse had substantially changed her position in reliance on the oral agreement. However, following changes in the statutory law, it has become much more difficult to change the character of a community or separate property without a written agreement. Parties can waive disclosure beyond that which is provided, and there is no requirement for notarization, but it is good practice. There are special requirements if parties sign the agreement without an attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days before the marriage. Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack and a lawyer should be consulted to make sure the prenup does not violate this provision. In California, through a prenuptial agreement, a couple may waive their rights to share property (community property). The agreement can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, the right to act as an executor, the right to take as a predetermined heir, and so forth. In Australia, a prenuptial agreement is referred to as a Binding Financial Agreement (BFA). In Australia, a BFA can be entered into before, during or after the end of a de facto relationship or a marriage. For a BFA to be binding and enforceable, both parties must be provided with Independent Legal Advice from a legal practitioner about the effect of the agreement on the rights of that party and about the disadvantages and advantages, at the time that the advice was provided, to that party entering into the BFA.

Premarital mediation is an alternative way of creating a prenuptial agreement. In this process, a mediator facilitates an open discussion between the couple about all kinds of marital issues, like expectations about working after children are born and saving and spending styles as well as the traditional premarital discussions about property division and spousal support if the marriage is terminated. The engaged couple makes all of the decisions about what would happen in the event of a separation or divorce with the assistance of the mediator. They then draft either a deal memo or a premarital agreement and have it reviewed by their respective attorneys. An agreement developed via mediation is typically less expensive. After all, fewer hours are spent with attorneys because the couple has made all of the decisions together, rather than one side vs the other.

A Muslim woman may lay down certain conditions in the taqliq (prenuptial agreement) before signing the marriage certificate to safeguard her welfare and rights. She may amend the taqliq or add further conditions later.